What Happens To My Pension And Retirement In My Divorce?

retiring to hammock

In a divorce the marital portion of the pension or retirement plan is going to be subject to valuation and equitable distribution.  The non-marital portion should not be subject to equitable distribution by the court. All vested and non vested pensions, retirement, profit sharing, thrift savings, annuities, or insurance acquired during the marriage constitute marital property.  Since only that part of the pension or retirement that accrued during the marriage is a marital asset a  court will look to see the premarital and post marital contributions and the increase in value that relates to each.

Often a Qualified Domestic Relations Order is entered which directs the administrator of a retirement plan to divide the retirement and award the marital portion to the plan holder’s spouse.

After the court has divided marital assets and debts in equitable distribution in can also consider a pension or retirement as a potential source of funds for an alimony award when performing its need and ability to pay analysis.

If you have questions regarding a retirement or pension in the context of your divorce please contact one of our lawyers on (786) 539-4935.

Attorney’s Fees and Alimony Awards Must Be Supported By Findings Of Fact Including Need And Ability To Pay

If you hope to obtain an attorney’s fee award, temporary support, or alimony in a divorce case you need to present evidence to the court of your need and the other parties ability to pay.

Evidence presented should include the standard of living established during the marriage; the contribution of each party to the marriage; the responsibilities of each party in relation to any minor children; the duration of the marriage; the age and the physical and emotional condition of each party; the financial resources of each party; the earning capacities, educational levels, vocational skills, and employability of the parties; and the sources of income available to the parties.  The court then needs to make specific findings based on that evidence presented.

In Abbott v. Abbott, the First District Court of Appeals reversed the trial court’s award of attorney’s fees and alimony because it had failed to make any findings of fact with regard to the wife’s need, the husband’s ability to pay, the parties’ incomes and expenses, and the applicable statutory factors.

The attorney’s fee award was not supported by the findings necessary to support it either.  Specifically, the trial court failed to make any findings of fact with regard to the Former Wife’s need for alimony and the Former Husband’s ability to pay, the parties’ incomes and expenses, and the factors listed in Florida Statute Section 61.08(2)(a)-(j).

The Court spelled out in detail its analysis of the alimony issue:

Appellant, the Former Wife, appeals the final judgment of dissolution of marriage, arguing that the trial court erred in its calculation of the permanent alimony award, in denying her request for retroactive alimony, and in failing to make the requisite findings of fact pursuant to section 61.08, Florida Statutes (2013). The Former Wife also asserts that the trial court erred in awarding her only $5,000 in attorney’s fees and by failing to make any findings of fact on this issue. Because the trial court failed to make sufficient factual findings to allow for a meaningful review, we reverse the alimony and attorney’s fees awards.

In the final judgment of dissolution of marriage, the trial court divided the parties’ assets and liabilities, awarded an equalization payment to the Former Wife, and then found and ordered as follows: Section 61.08 of the Florida Statutes sets forth the factors for this Court to consider in determining the amount of alimony, if any, to be awarded to the Wife. Among other things, this Court has considered the standard of living established during the marriage, the duration of the marriage, the age and the physical and emotional condition of each party, the financial resources of the parties, work experience of the parties, and the contributions of each party to the marriage. The Court finds that the Wife has a need and the Husband has the ability to pay permanent alimony to the Wife, in the sum of $750.00 per month commencing on March 10, 2015․

The court finds that the Wife has a need and the Husband has the ability to contribute towards her attorney’s fees. The Court finds that reasonable attorney’s fees to be awarded to the Wife totals $5,000.00․

The trial court denied the Former Wife’s motion for rehearing, in which she argued in part that the trial court failed to make the requisite findings in awarding alimony, in not making the alimony payments retroactive, and in awarding attorney’s fees. This appeal followed.

The trial court’s alimony award is reviewed for an abuse of discretion. Broemer v. Broemer, 109 So.3d 284, 289 (Fla. 1st DCA 2013). An appellate court will not disturb an alimony award if it is supported by competent, substantial evidence and the trial court complied with the law, but it reviews the trial court’s application of the law to the facts de novo. Id. Section 61.08, Florida Statutes (2013), governs the award of alimony and provides in part that “[i]n all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” Subsection (2) in turn requires the court to “first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” Id. If the court finds that a party has a need for alimony and the other party has the ability to pay, then, in determining the proper type and amount of alimony, “the court shall consider all relevant factors, including, but not limited to” those enumerated in subsection (2)(a)-(j). Id. Those factors include the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of each party; the financial resources of each party; the earning capacities, educational levels, vocational skills, and employability of the parties; and the sources of income available to the parties. Id. Additionally, “[i]n awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” § 61.08(8), Fla. Stat.

The trial court’s failure to include in the final judgment the requisite findings of fact relative to the factors enumerated in section 61.08(2) generally constitutes reversible error because, in most cases, it precludes meaningful appellate review. Winder v. Winder, 152 So.3d 836, 840–41 (Fla. 1st DCA 2014) (reversing the permanent alimony award to the wife because the final judgment lacked sufficient factual findings as required by section 61.08 where the trial court did not make findings regarding the wife’s current living expenses, the parties’ financial resources and the sources of income available to them, the value of the assets and liabilities distributed to each party, the standard of living established during the marriage, and each party’s contribution to the marriage, and reversing for the additional reason that the trial court failed to expressly find that no other form of alimony would be appropriate); see also Watson v. Watson, 124 So.3d 340, 343 (Fla. 1st DCA 2013) (noting that the trial court failed to include in the final judgment all the findings required by section 61.08(2) and directing the court to make those findings on remand); Galstyan v. Galstyan, 85 So.3d 561, 564 (Fla. 4th DCA 2012) (“In determining ability to pay, the trial court must make specific findings of fact regarding the paying spouse’s financial resources.”); Gray v. Gray, 103 So.3d 962, 964–67 (Fla. 1st DCA 2012) (reversing the alimony award because the final judgment failed to include sufficient factual findings).

Further, the trial court may award retroactive alimony when appropriate, but it must be based on the receiving spouse’s need and the paying spouse’s ability to pay. Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010) (noting that the trial court made no findings about the parties’ incomes between the time of the divorce filing and the entry of the final judgment as required by section 61.08); see also Vitro v. Vitro, 122 So.3d 382, 385 (Fla. 4th DCA 2012).

Lastly, a trial court’s award of attorney’s fees is reviewed for an abuse of discretion and is controlled by section 61.16, Florida Statutes. Mitchell v. Mitchell, 141 So.3d 1228, 1229 (Fla. 1st DCA 2014). Section 61.16(1), Florida Statutes (2013), provides that “[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this․” The purpose of section 61.16 is “ ‘to ensure that both parties will have a similar ability to obtain competent legal counsel.’ “ Broemer, 109 So.3d at 290 (quoting Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997)). “A trial court must determine the ultimate issue of fees and costs after the dissolution proceeding concludes, based on the parties’ respective financial circumstances.” Id.

“[A] trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount,” “ ‘even if there is competent, substantial evidence to support the award.’ “ Mitchell, 141 So.3d at 1229 (internal citation omitted). An order to pay a portion of the spouse’s attorney’s fees must be based on the requesting party’s need and the other party’s ability to pay the fees. Winder, 152 So.3d at 842. “ ‘The trial court must [ ] make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.’ “ Id. (internal citation omitted). “ ‘A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts “are reasonable time spent and hourly rates,” is insufficient under [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985) ].’ “ Id. (internal citation omitted); see also Mitchell, 141 So.3d at 1229–30 (reversing in part and remanding to allow the court to make the requisite findings where the final judgment merely recited that the hours and hourly rate in the wife’s affidavit of attorney’s fees and costs were reasonable, but did not make specific findings as to the number of hours expended by the wife’s attorney or whether those hours were reasonable, as required under Rowe ); Bradham v. Bradham, 120 So.3d 1274, 1276 (Fla. 1st DCA 2013) (reversing and remanding the attorney’s fees award where the trial court found that the former wife had a need for a contribution to her attorney’s fees and costs and the former husband had an ability to pay, the former wife submitted an affidavit from her attorney’s law firm attesting to the fees and costs incurred and detailed records of the hourly rate and hours expended, but there was no indication that the trial court considered the Rowe factors); Ard v. Ard, 765 So.2d 106, 107 (Fla. 1st DCA 2000) (reversing and remanding the attorney’s fees award where there was competent, substantial evidence in the record to support the award, but the trial court failed to make factual findings regarding the total number of hours expended by the appellee’s attorney, the hourly rate, or the reasonableness of the fee).

Here, the trial court failed to make any findings of fact with regard to the Former Wife’s need for alimony and the Former Husband’s ability to pay, the parties’ incomes and expenses, and the factors listed in section 61.08(2)(a)-(j); as such, we are constrained to reverse the alimony award, especially in light of the conflicting evidence that was presented during the hearing about her monthly expenses and his income. We likewise must reverse the attorney’s fees award because the trial court did not make any findings of fact about the parties’ need and ability to pay, the attorney’s hourly rate, the number of hours reasonably expended, the reasonableness of the fee, and the appropriateness of reduction or enhancement factors.

What Can Happen If I Don’t Pay Child Support?

Where a parent fails to pay court ordered child support pay checks can be garnished, bank accounts can be frozen, a driver’s license can be suspended, passport renewal can be denied, and a tax refund can be intercepted.  A parent can even be incarcerated if found in contempt.

Where a parent fails to pay court ordered child support the other parent or the Department of State, Child Support Enforcement Program, can seek to have them held in contempt of court.  To establish a parent is in contempt for the non-payment of child support it is necessary to establish the willful violation of the court’s child support order.  ie. that a parent presently has the money to pay the court ordered child support, but instead chose not to comply with the court ordered child support obligation.

An order of contempt must be in writing and contain findings of fact that a prior order requiring payment of child support was entered; that the parent failed to pay the child support as ordered; that the parent had the ability to pay; and that the parent willfully failed to pay the child support.  The burden is on the party seeking a finding of contempt to establish the willful violation of the court’s order by clear and convincing evidence.

An order must specify the amount to be paid and the manner of payment.  If an order imposes incarceration or another coercive sanction it must specify how the parent can purge themselves of the sanction.  If a parent still fails to comply the movant must file an affidavit of non-compliance and the court can then issue a writ of bodily attachment for the arrest of the non-compliant party so that they can be brought before the court within 48 hours for a hearing on whether they have the present ability to pay and if so what sanctions the court will impose.

If you have questions about establishing child support, enforcement of an existing order, or modification of child support contact our attorneys to help answer your child support questions.

Can A Stalking Injunction Or Domestic Violence Injunction Be Modified?

Modification of Stalking Injunctions and Domestic Violence Injunctions

Yes.  Stalking injunctions and domestic violence injunctions can be modified or dissolved under Florida law where there has been a substantial change in circumstances warranting the change.  Where a party seeks to modify a stalking or domestic violence injunction and sufficient allegations are made in a motion to support the modification the court must then hold an evidentiary hearing to determine if the modification is justified, and if so, how the injunction will be changed.

Hence even a permanent injunction may not be permanent at all.

In Feldman v. Callins, the Fourth District Court of Appeals for the State of Florida reversed a trial court decision that dismissed a legally sufficient motion to dissolve or modify a stalking injunction.  The Court ruled that the where a legally sufficient motion for modification has been filed a party must be given the opportunity to be heard on it.

If you need to talk to a lawyer about a stalking or domestic violence injunction or the modification or dissolution of one contact us to arrange a consultation.

Relief from Injunction Against Stalking Pursuant to Florida Rule of Civil Procedure 1.540

Stalking Injunction Respondent, John Richards asked for relief from an injunction against stalking pursuant to Florida Rule of Civil Procedure 1.540.  Florida Rule of Civil Procedure 1.540 provides the possibility of relief from an order, judgment, or decree where there has been a clerical mistake, mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. There are some very specific procedural requirements that must be observed for relief to  be granted under the Rule.

Mr. Richards claimed in support of his motion that he was of low to average intelligence and had poor comprehension, did not understand what the injunction was, or understand the notice of evidentiary hearing  so he did not attend the evidentiary hearing at which the injunction was entered against him.  In support of his Motion to set aside the injunction Mr. Richards filed affidavits sworn to by both himself and his mother.  The trial court summararily denied Mr. Richards Motion without conducting a hearing.

Stalking Injunction Set Aside

In Richards v. Crowder, the Fourth District Court of Appeals for the sate of Florida reversed the trial court’s denial of Mr. Richard’s Motion stating that the Motion was facially sufficient as Florida law recognizes that illness, psychological condition, lack of the ability to read, and lack of comprehension can all support a finding of excusable neglect that can lead to relief from a court judgment such that the trial court should have conducted an evidentiary hearing on the Motion rather than denying it outright.  The trial court was instructed to hold an evidentiary hearing on Mr. Richards’ Motion.

If you need to talk to a lawyer about a domestic violence or stalking injunction or a motion to set aside or obtain relief from an order, judgment, order or decree contact our office to schedule a consultation.

Can I Get My Lawyer’s Fees Paid By The Other Side In A Divorce Or Paternity Case?

The answer in one word is, sometimes.

attorneys fees in dovirce and paternity cases

Pursuant to Florida Statute Section 61.16: “The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.”

So when one party needs money for their attorney’s fees and the other party has the financial ability to pay the court can make a fee award in favor of the party in need.

Pursuant to the Florida Supreme Court case of Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) and its progeny a court can also award fees where warranted; in light of the scope and history of the litigation; the duration of the litigation; the lack of merit of the positions taken by the other side; because the other side has brought defenses and assumed positions to mainly frustrate and stall; and based upon the existence and course of prior and existing litigation.

Accordingly, when the other party in a divorce or paternity case engages in bad conduct and takes bad positions during a divorce case that drives up attorney’s fees the court can hold them accountable for those fees.

The court can make an award of temporary attorney’s fees while the case is ongoing and can also make an award of attorney’s fees at the end of the case.  Whether the court will do so is usually based upon the requesting parties’ need for attorney’s fees and the other parties ability to pay.

To recover fees on a temporary basis during the pendency of the case or at its conclusion it is usually necessary to establish the facts that support your claim to establish need and ability to pay and the Rosen case’s factors through admissible evidence and testimony.  It is also necessary to establish the amount of the fees and there reasonableness.

If you want to talk to a lawyer about the potential for recovery of fees in your case contact us for a consultation on (786) 539-4935.

Can I Get Sole Custody Of My Child?

You can not get sole custody in a divorce or paternity case anymore, but you can get something close to it if warranted by the specific facts of your case, and in some cases parental rights can be terminated were there are egregious circumstances of abuse, abandonment, and/or neglect.

Under Florida law, there is no longer something called sole custody.  The law favors the involvement of both parents in a child’s life and now uses the phrases, parenting plan, time-sharing, and shared parental responsibility, to reflect the preference of Florida law for the involvement of both parents in a child’s life, rather than the historically used terms custody and visitation which imply one parent has superior rights concerning a child as compared with the other.

Sole Custody

In a typical family law, divorce, or paternity case, you can expect both parents to share time with the child.  While all time-sharing schedule are not equal time-sharing schedules, in a typical case both parents have regular overnights with their child.

In a typical case, parents are are also expected to make important decisions concerning their child together.

However, if warranted by the specific circumstances of a divorce or paternity case, the court can create an unequal time-sharing schedule,  can limit or restrict a parents communications and time-sharing with a child, and can give one parent decision making authority concerning important decisions for a child on specific issues to the exclusion of the other parent.

The court does not take such decisions lightly and a parent needs to establish a very good basis, through testimony and evidence, for the court to award sole decision making authority, or restrict a parents time-sharing and communications with their child.

Where supported by the right testimony and evidence the court can order things like no overnights, supervised time-sharing, supervised communications, and/or impose conditions on a parent they must fulfill for them to be able to be involved in shared decision making, have communications with the child, and have time-sharing with the child.

In the context of a typical divorce or paternity case, it is not realistic to expect the court to completely cut off a parent and not give them a way back into a child’s life if they do the things the court requires them to do.

In the most egregious of cases, cases of abuse, abandonment, and/or neglect, the law does provide a mechanism for the termination of parental rights.  It is also possible for a parent to voluntarily surrender their parental rights as part of an adoption or step-parent adoption proceeding. Further, depending on the circumstances parental rights can  be terminated  where a parent is incarcerated.

If you have questions about “sole custody”, “visitation”, time-sharing, parental responsibility, or the termination of parental rights contact one of our lawyers to arrange a consultation to discuss your situation and get the advice you need.

Partition, The Division of Property Between Co-Owners

You own a property with someone you planned your future with, bought it together as an investment, or obtained title together, but there comes a time when you decide you need to separate your interest in the property but the other owner won’t agree.  What do you do?  You pursue a partition action.

keys to house for partion or sale

When a property is owned jointly with another person, and you want to separate your ownership interest and sell the property but the other owner won’t cooperate you can ask the court to partition the property.  In a partition case the court can order the public or private sale of a property.   Once sold the court can determine how the proceeds of the sale should be distributed between the owners based on their ownership interests, give set-offs and credits for things like; upkeep of the property, the payment of the property’s expenses, the cost of mutually approved improvements to the property, and to the extent to which one owner is out of possession of the property they may be entitled to a portion of the fair rental value of the property from the owner in possession.

Where the joint owners are married partition is often alleged as part of a divorce case so as to give the court options beyond what equitable distribution may provide for.  Technically the partition can only happen after the parties are divorced.

If you need to separate your interests in a property from a co-owner, or need to discuss partition as part of a family law or divorce case, with an attorney with experience in partition of real property please contact us to arrange a consultation.

Should a Brokerage Account Funded with Inherited Money be Considered Marital?

In a Divorce case the court determines what assets and liabilities are marital and which are not and equitably divides the marital assets and liabilities. The Third District Court of Appeals entered an opinion in the case of Gromet v. Jensen reversing the trial court for its decision to consider three brokerage accounts funded with inherited money to be marital and subject to equitable distribution.

Of the three brokerage accounts, one had been established prior to the marriage and the two others that had been established during the marriage. All three had been funded by the Husband with money inherited from his mother. Inherited money usually starts of as being non-marital.

The Wife claimed that the brokerage accounts were marital because the Husband had deposited about $1,100 from the dissolution of a marital business into a brokerage account and because the Husband had expended marital efforts and labor in his management of the accounts such that any enhancement in value should be considered marital.

The Husband claimed that while he had managed the accounts during the marriage they had actually decreased in value because of trading losses and the use of funds to maintain the marital household. The Husband also testified that the had not deposited the $1,100 from the marital business into any of the three brokerage accounts having deposited it into a separate bank account.

The Third District Court of Appeals considered the testimony, evidence, and law in detail coming to the conclusion that the three brokerage accounts were not marital on the record before it. It reasoned that the Wife had not specified which brokerage account the $1,100 had been deposited into and did not have specific knowledge regarding the accounts such that the evidence before it was insufficient to find commingling had occurred based upon the vagueness of the Wife’s testimony and evidence concerning the deposit.

The Court then considered the Wife’s enhancement in value argument. The Court reasoned that while the Husband had actively managed the accounts during the marriage the Wife had failed to meet her burden to show an enhancement in their value had resulted from it, and that the evidence of record actually supported that they had decreased in value. Accordingly, the Wife was not entitled to any portion of the three accounts.

This case shows the importance of properly preparing for trial and presenting the right evidence to the trial court. Had a different record been established at trial through documents or testimony the outcome may have been completely different. For instance a bank record showing the deposit of the $1,100 into the initial brokerage account which was then used to fund the other two may have affected the court’s consideration of whether the accounts had become marital through commingling.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, valuation under the law, and presenting the legal arguments and evidence to the court to support your position, contact our office to arrange a consultation on (786)539-4935

Divorce, Equitable Distribution, Court Must Identify Marital Or Nonmarital Status of Assets and Liabilities and Value Them

equitable distribution assets and liabilitiesIn a divorce case with assets and liabilities, the court must identify what assets and liabilities are marital and what are non-marital and then assign values to the assets and liabilities so they can be divided in equitable distribution.

Determining what is marital and what is non-marital generally starts with a determination of what assets and debts were obtained or incurred during the marriage.

There are however some exclusions from what is considered marital even where an asset was acquired during the marriage, for instance, non-interspousal gifts, income produced by nonmarital assets, or an inheritance.

Then a court must then decide if assets and debts that existed prior to the marriage have a marital component because of concepts like gifting, enhancement, and commingling.

The assets and liabilities are then valued and equitably divided by the court.

This is not necessarily an easy process involving both legal concepts and valuation issues so you will want a lawyer with experience in such issues to present the right legal concepts and values to the court.

If a court does not determine what is marital and what is nonmarital and value the assets and liabilities in its judgment a decision can be reversed.

For instance, in Buckalew v. Buckalew, the trial court had affirmed a General Magistrates written findings of fact that did not identify what assets and liabilities were marital and what were not.  Nor did it assign values to each asset and liability.  The Fourth District Court of Appeals for the State of Florida reversed the trial court’s decision to adopt the written findings because they did not state what was marital and what was not and assign a value to each asset and liability.

A decision can also be reversed if a court does not categorize what is marital or nonmarital correctly or uses inappropriate valuation methods.

If you are facing equitable distribution issues in your divorce case you need a divorce lawyer who can help identify the issues specific to your case and help you present your case to the court.  Call us for a consultation. (786) 539-4935